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ELCStruck OutNot stated in ruling (filed 10/4/2008)· [2024] KEELC 7458 (KLR)

Shonko v Pulei (Environment & Land Case 603 of 2017) [2024] KEELC 7458 (KLR)

Environment and Land Court
12 November 2024
821 words in judgment
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The bottom line

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A Kenyan court struck out a 16-year-old boundary dispute, confirming that boundary questions about registered land must go to the Land Registrar first, not the courts.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kajiado (M.N. Gicheru, J) determined a notice of motion dated 6/11/2021 by the plaintiff, brought under Article 40 of the Constitution, Order 22 of the Civil Procedure Rules, Sections 1A, 1B and 38 of the Civil Procedure Act and provisions of the Land Act and Land Registration Act. The plaintiff sought adoption of a private surveyor's report concerning L.R. Kajiado/Ewaso Kedong/1362, contending that the District Surveyor's report filed on 18/12/2019 pursuant to a court direction of 18/10/2018 was shallow, unscientific and failed to capture massive encroachment and loss of acreage, while the plaintiff's private surveyor found the beacons questionable. The motion was unopposed. The court framed three issues: its jurisdiction over boundary disputes, whether it could enter judgment on a private surveyor's report, and the way forward. Holding that Section 18(2) of the Land Registration Act vests exclusive jurisdiction over boundary disputes of registered land in the Land Registrar, and that under Regulation 40(4) of the Land Registration (General) Regulations 2017 the Registrar must be guided only by the official survey office, the court found a private surveyor's report has no place in official boundary determination. Noting the suit, filed on 10/4/2008 under Section 21(4) of the Registered Land Act, was from inception before a forum without jurisdiction, and that the court's only role under Regulation 40(6) is appellate, the judge struck out the suit with costs to the defendant for want of jurisdiction.

Key legal issues

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01

Jurisdiction over boundary disputes of registered land

Holding

The court lacks jurisdiction; boundary determination is exclusively for the Land Registrar under Section 18(2) of the Land Registration Act.

Reasoning

Section 18(2) of the Land Registration Act bars courts from entertaining actions relating to boundary disputes of registered land unless the boundaries have first been determined under that section. The Land Registrar holds exclusive original jurisdiction, and Regulation 40(4) of the 2017 Regulations requires the Registrar to be guided only by the official survey office. The court therefore cannot determine the boundary dispute at first instance.

p. 2
02

Whether a private surveyor's report can ground judgment

Holding

No; a private surveyor's report has no place in official boundary determination.

Reasoning

Because Regulation 40(4) confines the Registrar's lawful guidance to the office responsible for survey of land, reports by private surveyors cannot be adopted by the court as a basis for determining a boundary dispute. The applicant's motion to adopt the private surveyor's findings therefore could not succeed.

p. 2
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The way forward for a suit filed in a forum without jurisdiction

Holding

The suit, filed in 2008 before the wrong forum, must be struck out with costs.

Reasoning

The suit was filed on 10/4/2008 when Section 21(4) of the Registered Land Act (Cap 300) equally barred courts from entertaining boundary disputes. It was thus before the wrong forum from inception, explaining the inordinate delay, and the only lawful course was for the court to strike it out for want of jurisdiction.

p. 2

Legal principles established

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  • The Environment and Land Court has no original jurisdiction to entertain disputes as to boundaries of registered land; such jurisdiction vests exclusively in the Land Registrar under Section 18(2) of the Land Registration Act.
  • In determining a boundary dispute, the Registrar is guided only by the official survey office, not by private surveyors' reports.
  • Under Regulation 40(6) of the Land Registration (General) Regulations 2017, the court's jurisdiction over boundary disputes is appellate only.

Court orders

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  1. 1.Suit struck out with costs to the defendant for want of jurisdiction
Jurisdiction invoked
Article 40 of the Constitution and Sections 1A, 1B and 38 of the Civil Procedure Act (motion); jurisdiction analysis under Section 18(2) of the Land Registration Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Shonko v Pulei (Environment & Land Case 603 of 2017) [2024] KEELC 7458 (KLR)", Case Analysis (2024). Not stated in ruling (filed 10/4/2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7458/eng@2024-11-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.